This document provides an overview of navigating disability law. It discusses which federal disability rights laws apply to agencies and programs, basic ADA/504 requirements related to communication, rules of thumb for compliance, obligations to provide effective communication to individuals with disabilities, website accessibility requirements, and potential consequences for non-compliance.

1. Navigating Disability Law:
The 30,000-Foot View
Center for Health Literacy Conference 2011
Plain Talk in Complex Times
September 23, 2011
Cary LaCheen
National Center for Law and Economic Justice
275 Seventh Avenue, Suite 1506
New York, NY 10001
212-633-6967
(fax) 212-633-6371
lacheen@nclej.org
www.nclej.org

2. Navigating Disability Law
Topics addressed in these materials
• Questions you may have
• Which federal disability rights laws apply to agencies/programs
• Basic ADA/504 requirements related to communication
• Rules of thumb for ADA/504 compliance
• The obligation to provide effective communication with
individuals with disabilities
• Telecommunications access
• Website accessibility
• Information kiosks
• Health care reform and effective communication
• Communication with individuals with limited English proficiency
• What if my agency/program can’t afford to do what the law
requires?
• What could happen if my agency/program doesn’t comply?
• Resources
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3. The 30,000-Foot View
Questions you may have
• Which disability rights laws apply to my agency/program?
• What does my agency/program have to do to comply with
disability rights laws?
• What if my agency/program can’t afford to do what disability
rights laws require?
• What could happen if my agency/program doesn’t comply with
disability rights laws?
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4. Navigating Disability Law
Which federal disability rights laws apply to
agencies/programs
• Title II of the Americans with Disabilities Act (ADA) applies to
the programs and services of states and local governments
(including services provided by contractors).
• Title III of the ADA applies to private and non-profit
entities providing services to the public (“places of public
accommodation”).
• Title I of the ADA applies to employment practices of employers
of 15 or more employees, employment agencies, unions, and
labor-management committees.
• Section 504 of the Rehabilitation Act (Section 504) applies to
the programs and services of all federal agencies.
• Section 504 also applies to the programs and services of
recipients of federal financial assistance (including federal
grants, federal Medicare and Medicaid funds, etc.).
• Section 508 of the Rehabilitation Act (Section 508) applies to
electronic and information technology developed, purchased,
or used by federal agencies.
In many instances, more than one of these laws applies to an entity’s
programs and services.
In addition, the Plain Writing Act of 2010 requires federal agencies
to ensure that new documents used to apply for federal benefits;
documents describing federal programs; and letters, notices, and tax
documents are written in plain language and easy to understand.
Executive Orders require regulations to be written in plain language.
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5. The 30,000-Foot View
Basic ADA/504/508 requirements related to
communication
• Entities covered by the ADA/504 must provide people with
disabilities with meaningful access to programs, services, and
information, and an equal opportunity to participate in and
benefit from programs and services.
• Entities covered by the ADA/504 must provide reasonable
accommodations to people with disabilities (including
modifications of program rules and procedures) when necessary
for people with disabilities to have a meaningful access or an
equal opportunity to participate and benefit.
• Entities covered by the ADA/504 cannot be operated in a way
that has a discriminatory effect.
• Entities covered by the ADA/504 must provide effective
communication with individuals with disabilities.
• Federal agencies must ensure, that the electronic and
information technology is accessible to federal employees and
members of the public with disabilities seeking information
or services from a federal agencies. If it would be an undue
burden the federal agency must provide individuals with
disabilities with information and data by an alternative
accessible means.
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6. Navigating Disability Law
Rules of thumb for ADA/504 compliance
• It’s not just about technical standards and technology—it’s also
about what your policies and procedures say and whether staff
comply with them.
• One size does not fit all: If your agency or program requires
people to do things in only one way (e.g., only in person,
only by phone, only online, only in the morning, only on
Wednesdays, etc.), you are probably violating the ADA/504.
Assume that for every method of doing something, there are
people with disabilities who cannot do it that way for reasons
related to their disability. The greater the number of paths to
obtaining information, applying for services, receiving services
and fulfilling program requirements, the less likely you are to
violate the ADA/504.
• One exception does not fit all: Just because you make one type
of accommodation or one means of accessibility does not mean
that you don’t have to do other things to meet your ADA/504
obligations. (Not all deaf and hearing-impaired individuals use
TTYs.)
• Assumptions (about what people need or use) result in
ADA/504 violations. (Some people don’t have computers; some
people don’t have anyone to read or explain documents to
them.)
• The more difficult it is for clients to get accommodations (or
for staff to get approval to provide them), the more likely the
agency or program is to violate the ADA/504.
• Request for Proposal (RFP) and contract language matter: RFPs
(e.g., to set up phone systems, operate call centers and help
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7. The 30,000-Foot View
lines, design websites, produce written materials, conduct
trainings, etc.) should require bidders to describe how they will
make services/materials accessible, and inform bidders of what
this means. Contracts should contain specific information on
what the contractor must do to comply with the ADA/504.
Boilerplate language (“thou shalt comply with the ADA/504”) is
not enough to result in accessible services/materials.
• Having written ADA/504/508 policies that contain operational
details (who is responsible for doing what, etc.) is essential.
Written policies are the necessary connective thread between
broad legal requirements (“meaningful access”) and what staff
actually do each day. Without detailed written policies and staff
training on those policies, there is no way that your program
is complying with the ADA/504, and it is unlikely that it is
complying with 508.
• Compliance monitoring is essential. Assuming that staff
understand and comply with ADA/504/508 instead of checking
is likely to result in ADA/504 violations.
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8. Navigating Disability Law
The obligation to provide effective communication
with individuals with disabilities
• State and local governments and public accommodations must
ensure that communication with individuals with disabilities is
effective.
• Applies to applicants, participants, beneficiaries, members
of the public, and “companions” with disabilities (relatives,
friends, advocates of the applicant, recipient, patient, if the
person is an appropriate person to be interacting with the
agency or business) (e.g., deaf parent of patient or client, a
visually impaired advocate for a client).
• If necessary for effective communication, an agency must
provide auxiliary aids and services to the individual. “Auxiliary
aids and services” include:
− Qualified sign language interpreters (on-site and remote);
notetakers; computer transcription services; written
materials; exchange of written notes; telephone handset
amplifiers; assistive listening devices and systems; telephones
compatible with hearing aids; closed caption decoders; open
and closed captioning including realtime captioning; voice,
text, and video-based products and systems, including text
telephones (TTYs); videophones and captioned telephones
or equally effective telecommunications devices; videotext
displays; accessible electronic and information technology;
or other effective methods of making orally delivered
information available to individuals who are deaf or hard of
hearing;
− Qualified readers; taped texts; audio recordings; Brailled
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9. The 30,000-Foot View
materials and displays; screen reader software; magnification
software; optical readers; secondary auditory programs;
large print materials; accessible electronic and information
technology; or other effective methods of making visually
delivered materials available to individuals who are blind or
have low vision;
− Acquisition or modification of equipment or devices; or
− Other similar devices and actions.
• The type of auxiliary aid and service that must be provided
depends on the length and complexity of the communication,
the context, etc. (Writing notes with a deaf person may be
sufficient to schedule an appointment, if the person can read
and write English, but is not sufficient to discuss rights and
responsibilities, medical regimens, etc.).
• Auxiliary aids and services must be provided in a way that
protects privacy and independence of the individual with a
disability. (Reading documents to clients may not be adequate).
• Effective communication requirements apply to individuals
with disabilities other than vision and hearing impairments,
(e.g., individuals with cognitive, intellectual and learning
disabilities). Materials, to the greatest extent possible, should
be written at a level that individuals with low reading levels can
understand. Documents that require a college degree to read
and understand may raise ADA/504 issues.
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10. Navigating Disability Law
Telecommunications access
• If you communicate by phone with applicants, beneficiaries
and members of the public, you must have a TTY or equally
effective method of communicating with individuals who are
deaf, hearing impaired or have speech impairments. Using
relay services to make outgoing and accept incoming calls is
sufficient (if staff are adequately trained). Entities must accept
incoming calls from people with disabilities by whatever means
they are made (e.g., voice relay, video relay, speech-to-speech
relay, etc.)
• Exception: Telephone emergency services (e.g., 911) must
provide direct access to callers using TTYs and computer
modems.
• Policies (e.g.,“we are not allowed to talk to a third party”)
have a discriminatory effect on people with disabilities (unless
disability-related exceptions are made).
• Automated phone answering and routing systems and
voicemail (IVR) must be set up in a way that makes it possible
for TTY and relay callers to use them in the same manner that
others do (e.g., allowing sufficient time to select options if a
relay call). Federal law requires telecommunications hardware
and software be designed to be accessible to people with
disabilities, if readily achievable, and if not, to be compatible
with assistive technology, so these systems have the capacity to
be set up to provide access.
• People with disabilities increasingly use methods of remote
communication other than telephones (e.g., email, texting).
Government agencies and public accommodations should
consider using these methods with some clients.
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11. The 30,000-Foot View
Website accessibility
• Government agency and public accommodation websites must
be accessible to and usable by people with disabilities, even
if people can obtain information and services by other means
(e.g., phone, mail, in person). Nothing provides the 24/7 access
and convenience of the internet.
• Accessibility means: A person who is vision-impaired who
uses a screen or Braille reader can access web pages using this
assistive technology; people using assistive technology can fill
out online forms; charts make sense to people using screen
and Braille readers, non-text elements have text labels, deaf or
hearing-impaired people have access to information conveyed
through sound; the website does not trigger seizures; etc.
• How: Non-text elements (photos, icons, images) must have
a text description; pages and attachments must be in a text
format (not image PDFs); boxes in tables must have text labels;
layout must be logical for screen reader users; sound must be
captioned; etc.
• There are two sets of technical accessibility standards:
− Section 508 standards, which apply to federal agencies
− World Wide Web Consortium Web Content Accessibility
Guidelines (W3C Guidelines)
W3C Guidelines have been updated (2.0); Section 508
standards are being updated. At the present time, 508
standards and W3C Guidelines are not the same. When 508
standards are updated they will be far more similar.
• Every state has an accessible website or technology law or
policy that adopts Section 508 standards, W3C Guidelines, or a
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12. Navigating Disability Law
combination, for state websites.
• The U.S. Department of Justice (DOJ) position: State and local
government websites and public accommodation websites
must be accessible, though DOJ has not said which set of
technical standards they must comply with.
• If your website complies with neither 508 standards nor W3C
Guidelines, you are out of compliance with the ADA/504.
• The U.S. Department of Health and Human Services (HHS)
has said in IT Guidance and proposed Affordable Care Act
(ACA) regulations for Health Exchanges that it will consider an
Exchange website that meets Section 508 standards to be in
compliance with Section 504.
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13. The 30,000-Foot View
Information kiosks
• Information kiosks must be accessible to individuals with
disabilities. DOJ is considering issuing specific regulations on
kiosks and other electronic and information technology, and the
U.S. Access Board is considering adopting technical accessibility
standards for kiosks.
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14. Navigating Disability Law
Health care reform and effective communication
Implementation of health care reform must comply with the ADA,
Section 504 and Section 508.
Some of the (too numerous to identify) ADA/504/508 issues:
• Exchange websites and online applications must be accessible.
• Exchange call centers must provide effective communication
with callers with hearing, speech, and other impairments.
• Written materials provided by exchanges (e.g., comparative
information on insurance options) must be provided in
alternative formats if needed by people with disabilities.
• Individuals with disabilities who need in-person assistance to
apply for benefits must be provided with that assistance.
ACA and proposed regulations also contain many requirements
intended to ensure that people with disabilities (and other vulnerable
populations) have meaningful access to services and information,
and are protected from discrimination.
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15. The 30,000-Foot View
What if my agency/program can’t afford to do
what disability rights laws require?
The ADA and Section 504 don’t require agencies and businesses to
do everything for everyone:
• Although state and local governments and public
accommodations must give primary consideration to the
auxiliary aid or service requested by the person with a disability,
the law does not require them to provide the person’s first
choice of an aid or service if something less expensive will be
effective for the individual (e.g., a person may want Braille
materials but if she uses a computer and has screen reading
software, an electronic text document may suffice).
• State and local governments and public accommodations don’t
have to provide reasonable accommodations or do things to
provide effective communication that would fundamentally
alter the program or be an undue financial or administrative
burden. (But: The burden is on the agency to prove such a
burden; saying “it costs too much” is not sufficient, and a court
may look at entire agency or program budget to decide if the
agency can afford it).
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16. Navigating Disability Law
What could happen if my agency/program doesn’t
comply with disability rights laws?
Lacking a crystal ball, I will provide information instead of predicting
the future:
• The Social Security Administration was sued for not providing
notices in alternative formats to claimants who are blind and
those with vision impairments.. The agency lost, and now has
procedures in place to provide notices in alternative formats.
• The Treasury Department was sued for not making paper
currency accessible to the blind. The Department lost, and is
now taking steps to make paper currency accessible.
• The Atlanta transit agency was sued for not providing bus
schedules in alternative formats and failing to have an
accessible website. The court issued a preliminary injunction
against the agency.
• Universities have been sued in court and had DOJ complaints
filed against them for using inaccessible technology in their
courses (e.g., using Kindle as an “electronic textbook” when
the text-to-speech feature could not be used for all of the
device’s features). The cases and complaints have settled with
the universities agreeing to use accessible technology (or refrain
from using inaccessible technology).
• Many banks have been sued or the subject of DOJ ADA
complaints for refusing to accept relay calls. Many have resulted
in settlement agreements in which the banks agreed to change
their policies.
• DOJ looks at telephone and web accessibility and effective
communication procedures when it investigates complaints
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17. The 30,000-Foot View
(even if these issues were not raised in the complaint). Offices
for Civil Rights at other federal agencies (e.g., HHS, Food and
Nutrition Service) now routinely look at web accessibility in their
complaint investigations and compliance reviews.
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18. Navigating Disability Law
Resources
U.S. Department of Justice Information and Technical Assistance on the
Americans with Disabilities Act (ADA): www.ADA.gov
Official Website for Section 508 of the Rehabilitation Act:
www.section508.gov
Section 508 Electronic and Information Technology Accessibility
Standards: www.access-board.gov/sec508/standards.htm
Information on Proposed Updated Section 508 Standards:
www.accessboard.gov/508.htm
Federal Interagency Working Group on Limited English Proficiency
(LEP): www.lep.gov
World Wide Web Consortium (W3C) Web Content Accessibility
Guidelines and Techniques: www.w3.org/WAI/guid-tech
U.S. Department of Justice ADA Best Practices Tool Kit for State and
Local Governments: www.ada.gov/pcatoolkit/toolkitmain.htm
Federal Communications Commission: What You Need To Know About
Telecommunications Relay Services (TRS):
http://transition.fcc.gov/cgb/dro/trs.html
U.S. Department of Health and Human Services (HHS) Centers for
Medicare & Medicaid Services (CMS) Guidance for Exchange and
Medicaid Information Technology Systems:
http://cciio.cms.gov/resources/files/exchange_medicaid_it_
guidance_05312011.pdf
HHS Office for Civil Rights LEP Resources and Tools:
www.hhs.gov/ocr/civilrights/resources/specialtopics/lep/
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19. The 30,000-Foot View
Federal Plain Language Guidelines:
www.plainlanguage.gov/howto/guidelines/FederalPLGuidelines/TOC.
cfm
Web Accessibility Evaluation Tools:
www.w3.org/WAI/ER/tools/complete and
http://www.section508.gov/index.cfm?fuseaction=techtools
State Web Accessibility Policies/Legislation
(Note: chart may not be up to date):
www.hp.com/hpinfo/abouthp/accessibility/State_Web_Accessibility.pdf
Web Accessibility in Mind (WebAIM): www.webaim.org
Beyond ALT Text: Making the Web Easy to Use for Users With
Disabilities, Nielson Norman Group:
www.nngroup.com/reports/accessibility/ [148-page report]
Web Accessibility: Web Standards and Regulatory Compliance, Jim
Thatcher et al www.friendsofed.com/web-accessibility
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